Abstract
The tort of nuisance is commonly conceptualised as a strict liability tort. In the recent decision of Grace v Orion New Zealand Ltd [2021] NZHC 705, for example, Gendall J noted that “the traditional boundaries” of the tort are based on strict liability (at [195], citing Todd on Torts (8th ed, Thomson Reuters, 2019) by way of principal authority. However, there has long been a question whether reasonable foreseeability of harm is an element of the tort. Is the plaintiff required to show that a reasonable person in the defendant’s position would have been able to foresee the risk of harm? This is an important question. If the answer is yes, then nuisance requires fault, and it would be misleading to describe it as a strict liability tort.